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On June 20, 2012, major oil sands industry employers and labour providers announced their participation in the Drug and Alcohol Risk Reduction Pilot Project (DARRPP), sparking debate about the permissibility of the two-year pilot project under human rights law. DARRPP provides for a comprehensive regime of employee drug and alcohol testing, including random testing. The purpose of the pilot project is to investigate the effectiveness of a co-ordinated, industry-wide approach to reduce safety risks associated with employee drug and alcohol use.

Unions in the affected industries have expressed their opposition to DARRPP, asserting that it constitutes an impermissible intrusion on the rights, privacy and dignity of employees. Such resistance suggests that a challenge to the pilot project may be forthcoming.

Current Legal Landscape for Drug and Alcohol Testing

The question of whether drug and alcohol testing policies discriminate against employees on the basis of either an actual or perceived disability has been a controversial subject in Canadian jurisdictions, with courts in Western Canada adopting a broader approach to testing than courts in Central and Eastern Canada. In Entrop v. Imperial Oil Ltd. (Entrop), the Ontario Court of Appeal found random drug and alcohol testing of employees in safety-sensitive positions to be prima facie discriminatory. However, the court held that random alcohol testing could be justified as a bona fide occupational requirement (BFOR) for safety-sensitive positions, provided that sanctions were tailored to an employee’s individual circumstances. The court drew a sharp distinction between alcohol testing, which was found to be an effective indicator of actual impairment, and drug testing, which was found to indicate past drug use as opposed to current or likely future impairment.

The governing authority in Alberta is the Court of Appeal’s decision in Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada) Company (Chiasson). In Chiasson, the court upheld a zero-tolerance drug testing policy applicable to the post-offer/pre-employment stage for prospective employees involved in the expansion of an oil sands facility. Significantly, the court upheld the testing policy without recourse to the BFOR analysis, finding that the policy was aimed at actual effects experienced by recreational drug users and not perceived effects experienced by addicts. Key to this finding was the court’s acceptance of expert evidence indicating that the effects of marijuana linger for several days after use. The court concluded, “In this case [the employer’s] policy does not perceive Chiasson to be an addict. Rather it perceives that persons who use drugs at all are a safety risk in an already dangerous workplace.” (para. 34).

This disparate approach to drug and alcohol testing has created an uncertain legal environment for employers seeking to implement testing policies. It is anticipated that the Supreme Court of Canada’s upcoming decision in the New Brunswick case of Irving Pulp & Paper Limited v. Communications Energy and Paperworkers Union of Canada, Local 30 will rectify the regional divide and clarify the legal parameters for drug and alcohol testing in Canada. At issue in Irving is the question of whether employers are required to adduce sufficient evidence of alcohol-related incidents in the workplace to justify instituting a testing policy.

DARRPP and Human Rights Law

DARRPP relies on the ruling in Chiasson, as well as the following statement made by the Alberta Human Rights Commission in its March 2012 information sheet on Drug and Alcohol Dependencies in Alberta Workplaces: “… it is not the testing that triggers the protection of human rights law. It is how the employer treats employees who are dependent on drugs or alcohol.”

To promote compliance with human rights and privacy protections, DARRPP requires participating organizations to adhere to the following:

Have a mechanism in place for assessment by a third party of individuals who test positive for alcohol or drug use, to determine whether any individual suffers an addiction (disability).

Offer rehabilitation and accommodation for at least those who are diagnosed with an addiction (disability).

Have controls in place that ensure protection of privacy and personal information of workers who are tested.

In the event of a challenge under human rights law, the best argument for participating employers would be to say that DARRPP avoids violating human rights protections by requiring third party assessment of employees with positive test results, as well as accommodation and rehabilitation support for employees found to be experiencing drug or alcohol addiction. This scheme clearly distinguishes between the treatment of recreational users and employees with substance dependency issues and, as a result, may avoid the problem identified in Entrop of treating all employees with positive test results as having a disability, actual or perceived. The Alberta Human Rights Commission has made it clear that recreational drug users are not protected by human rights legislation.

DARRPP could also be upheld as an aggressive but justified approach to unprecedented safety issues faced by employers in the construction and operation of oil sands facilities. Participating employers have commented that current drug and alcohol testing programs are not sufficient to protect workplace safety in this environment. As well, there has been significant public outcry against the number of drug- and alcoholrelated fatalities on the “Highway of Death” between the oil sands and Edmonton. The Alberta Court of Appeal said in Chiasson: “Extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic.” (para. 36).

Relying on this statement, it could be argued that DARRPP is either non-discriminatory at the prima facie stage of analysis or reasonably necessary to achieve safety objectives and therefore justified as a BFOR.

The greatest challenge for participating employers is the limited nature of the ruling in Chiasson, which dealt specifically with marijuana and relied on expert evidence regarding the lingering effects of this drug. Such evidence was key to the court’s acceptance of drug testing as an effective indicator of current impairment. Unless participating employers can successfully argue that the reasoning in Chiasson extends to other drugs, DARRPP may not survive scrutiny under human rights law.

Conclusion

Employers considering DARRPP, or independent implementation of a drug and alcohol testing policy, should assess the nature of their workplace operations to determine whether testing is reasonably necessary to achieve their safety objectives. Once the decision has been made to proceed with testing, employers should draft and maintain a policy that is accessible for employees, clear in its goals and methods for limiting impairment in the workplace, and that provides for flexibility in accommodating those employees found to be experiencing drug or alcohol addiction.